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Happy Birthday S.B. 1070- a Few Days Late

With the anniversary of Arizona’s S.B. 1070 signing into law a few days ago, it is interesting to note that there is currently a case before the Supreme Court which may give future guidance and hints to the lower courts in ultimately deciding the constitutionality of S.B. 1070. Up front, let me state that on grounds of legal principle, I personally find nothing wrong with S.B. 1070. Arizona is uniquely situated along our porous southern border and has an obvious problem with illegal immigration in terms of crime, education, and provision of social services. FAIR, an immigration reform organization, estimates that it costs a legal Arizona resident a net $700 per year for these services. And while a S.B. 1070 type law may not be for every state in the Union, I think it greatly and uniquely addresses Arizona’s problems in this area. Conversely, it is also an indisputable fact that the Federal government has the enumerated power to write and enforce immigration laws. The latter part of that statement is the problem- the Federal government’s inaction or inability to enforce the very laws they enact. So the question arises whether states have the right to enact and enforce laws to address problems of illegal immigration- to, if you will, supplement those Federal laws.

In actuality, this case before the Court- Chamber of Commerce vs. Whiting, et. al.-need not reach that question. The law in question, passed in 2007 before S.B. 1070, allows the state of Arizona to revoke the business licenses of those who knowingly hire undocumented workers. There are built-in defenses- called affirmative defenses- for employers. For example, Arizona is not going to go willy-nilly around the state revoking business licenses. For example, if an employer, in good faith, complied with the I-9 process or used E-Verify, the State of Arizona is not going to revoke the license. It cannot, under the very wording of the statute. In fact, in practice, there are probably more safeguards for businesses that only the most egregious violators would lose their licenses. Furthermore, the revocation takes place on a “second offense” basis with the first offense being treated as a “probationary period.” That is, in conformity with federal law, there are no criminal or civil penalties against the employer.

During the oral argument on December 8, 2010, which have read and reread and listened to the audio several times, one argument of the Chamber of Commerce and the Federal government was that Arizona cannot go beyond what Congress wrote or intended. Much of the oral argument went to the gist of intent with regards to a clause in the Federal law regarding the state’s right to address the issue through licensing. Business licensing is a uniquely and historically within the purview of a state to regulate. This alone would indicate that the Arizona law should survive and the fact that Arizona was addressing the immigration problem through their right to grant and revoke business licenses was affirmed by the traditionally liberal Ninth Circuit Court of Appeals in San Francisco. Yet, the Federal government argues that (1) Arizona cannot go beyond what Congress intended and that (2) the Federal government has exclusive authority to enact immigration laws. As to that second factor, the Federal government has, in other areas, no problem allowing states to enact laws that they also enact.

For example, although Federal minimum wage laws may set that wage at a certain rate, states are free to enact their own minimum wage laws above that set by the Federal government. The Federal government may require certain truth-in-lending standards, but does not prevent states from enacting more stringent requirements. The EPA may set certain automobile emissions requirements, but nothing prevents California from having stricter standards. So why should the Arizona’s law allowing the revocation of business licenses for knowingly hiring undocumented workers suddenly run afoul of Federal law? Why does federal law pre-empt Arizona’s law, but not California’s stricter emissions laws or New Jersey’s more stringent truth-in-lending laws? As I see it, since the law involves licensing- a function of states- Arizona would be on firmer Constitutional grounds than California or New Jersey in the above examples.

With Kagan recusing herself from the case, I tried to divine, from the audio and written transcript, a possible breakdown of how this case will be decided. Of the eight cases heard in December, six have been decided by an average margin of 8-1. The fact that this case has yet to be decided would indicate that the vote will be close. Under ordinary circumstances, one could surmise that Chief Justice John Roberts and Justice Alito would side with businesses, or the Chamber of Commerce, in a case. Except their questioning during oral argument homed in on the fact that Arizona’s law was a licensing law first and one that impinged upon immigration laws second. Clarence Thomas does not ask questions, but given his support of state rights, he probably would fall on the side of Arizona. There is no doubt where Scalia falls- on the side of Arizona. Ginsburg asked very few questions other than getting at the Congressional intent of the clause in federal law regarding licensing. Kagan recused herself while Breyer seemed critical of the Arizona law and their legal reasoning. The wild cards here are Sotomayor and Kennedy. Anthony Kennedy expressed concern about some of Arizona’s legal reasoning while Sotomayor, at points, seemed to be giving Arizona the benefit of the doubt under the licensing clause in the federal law.

Normally I would put Roberts and Alito on the side of the Chamber of Commerce, but this not your typical “business” case. This case will be 5-3 or 4-4, which would be a victory for Arizona because it would uphold the 9th Circuit upholding the law. However, if 5-3 I would not be surprised if Kennedy was in the minority and Sotomayor in the majority.

The bottom line is that this law could set the groundwork one way or another for when and if provisions of S.B. 1070 reach the Supreme Court. Although there is a difference between this law and SB 1070 and this case could very well come down to the definition of a “license,” there are questions of pre-emption that arise.

In conclusion, it was Scalia who near the end of the oral argument got to the gist of the entire problem. When asked whether it would permissible to revoke a license if the grounds were violations of federal laws, the lawyer for the Chamber of Commerce noted that it could. It was then that Scalia interjected that “if there was a violation.” The fact that Federal government has no violations because they do not enforce the laws they have on the books is the very reason Arizona passed the law in the first place. If this Administration (and even the Bush Administration) took immigration law enforcement seriously beyond mere lip service, Arizona and other states would not be literally backed into corners. Otherwise, the law is merely words on a page and for what? Democratic pandering to the Hispanic community for votes?